Opinion issued September 22, 2016

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-15-00296-CV

———————————

JESUS GARCIA, Appellant

V.

DONNA GARCIA, Appellee

On Appeal from the 257th District Court

Harris County, Texas

Trial Court Case No. 2014-34289

MEMORANDUM OPINION

Jesus Garcia challenges the trial court’s rendition of a take-nothing summary 

judgment in favor of Donna Garcia on Jesus’s bill of review, which sought to set 

aside the parties’ divorce decree and order a new division of the parties’ estate. In 
2

his sole issue on appeal, Jesus argues that the trial court erred by rendering 

judgment without hearing or considering his evidence. We affirm.

Background

The original divorce proceeding

In 2012, Donna petitioned for divorce from Jesus. In the course of the 

divorce proceeding, the trial court entered a temporary order awarding the marital 

home to Donna and requiring that Donna timely make the mortgage payments on 

the home. The temporary order further required both parties to provide “a sworn 

inventory and appraisement of all the separate and community property owned by 

the parties” by December 20, 2012. 

On January 27, 2014—fifteen months after entry of the temporary order—

the trial court entered a final divorce decree. The final divorce decree is not 

included in the appellate record, but according to Jesus, he was awarded the marital 

home. 

The underlying bill of review

Jesus filed a bill of review on June 13, 2014. In it, Jesus claimed that Donna 

failed to make any of the mortgage payments on the marital home, as required by 

the trial court’s temporary order. As a result, the mortgage became delinquent, but, 

according to Jesus, he did not discover the problem until more than 30 days after 

the final decree was entered. Jesus argued that by failing to make the mortgage 
3

payments and failing to disclose that she had not made the payments, Donna 

prevented him from asserting rights to a greater share of the marital estate. 

Donna answered and moved for no-evidence summary judgment. Donna’s 

motion set forth the requirements for a bill of review and argued that Jesus had no 

evidence of two bill-of-review elements: (1) that he was prevented from making a 

meritorious defense by fraud, accident, or wrongful act of Donna or official 

mistake; and (2) that his failure to assert a meritorious defense was unmixed with 

any fault or negligence of his own. 

In his response to Donna’s motion, Jesus argued that Donna was not entitled 

to summary judgment because she failed to state the elements of a common-law 

fraud claim and identify which elements of that claim lacked evidentiary support. 

Jesus asserted that his accompanying affidavit “set[] forth summary judgment 

proof of the existence of a material fact concerning [his] claim for Fraud.” The 

affidavit states:

I was led to believe that when I was awarded the marital home on the 

day of my divorce trial, [Donna] had timely made all mortgage 

payment[s] in accordance with the Court’s order. I later learned that 

[Donna] had not made a single mortgage payment and that the home I 

was awarded was about to be foreclosed. I also learned that [Donna] 

had failed to forward to my attention the numerous notices sent from 

the mortgage and foreclosure companies that could have saved the 

home from foreclosure. On my own initiative and without any 

knowledge of the notices, I began trying to make contact with the 

mortgage company, but I was informed that they would not speak 

with me unless they had permission from [Donna], which she never 

gave. Upon learning how behind on mortgage payments the home 
4

was, I began making mortgage payments every month to the mortgage 

company only to find out months later that none of the payments had 

been applied to the home because it had gone into foreclosure. To 

date, I have not recovered and am still trying to track down the nearly 

$10,000 in mortgage payments I made to the mortgage company, but 

that was never applied towards the home. The home was lost to 

[foreclosure] on . 

The trial court granted Donna’s summary-judgment motion. This appeal followed. 

Discussion

In his sole issue, Jesus contends that the trial court erred in granting Donna’s 

no-evidence motion for summary judgment because it failed to consider Jesus’s 

evidence of a meritorious defense. 

A. Standard of Review

We review a trial court’s summary judgment de novo. Travelers Ins. Co. v. 

Joachim, 315 S.W.3d 860, 862 (Tex. 2010). If a trial court grants summary 

judgment without specifying the grounds for granting the motion, we must uphold 

the trial court’s judgment if any of the grounds are meritorious. Beverick v. Koch 

Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet. 

denied). When reviewing a summary judgment, we take as true all evidence 

favorable to the nonmovant, and we indulge every reasonable inference and 

resolve any doubts in the nonmovant’s favor. Valence Operating Co. v. Dorsett, 

164 S.W.3d 656, 661 (Tex. 2005). 
5

To prevail on a no-evidence motion for summary judgment, the movant 

must establish that there is no evidence to support an essential element of the 

nonmovant’s claim on which the nonmovant would have the burden of proof at 

trial. See TEX. R. CIV. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523–24 (Tex. 

App.—Houston [1st Dist.] 2009, pet. denied). The burden then shifts to the 

nonmovant to present evidence raising a genuine issue of material fact as to each 

of the elements specified in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 

572, 582 (Tex. 2006); Hahn, 321 S.W.3d at 524. A no-evidence motion for

summary judgment should not be granted if the nonmovant brings forth more than 

a scintilla of probative evidence to raise a genuine issue of material fact on the 

challenged element. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009). More 

than a scintilla of evidence exists if the evidence would enable reasonable and fairminded jurors to differ in their conclusions. Hamilton v. Wilson, 249 S.W.3d 425, 

426 (Tex. 2008) (per curiam). We review the summary-judgment evidence in the 

light most favorable to the party against whom summary judgment was rendered, 

crediting evidence favorable to that party if reasonable jurors could, and 

disregarding contrary evidence unless reasonable jurors could not. Tamez, 206 

S.W.3d at 582; King Ranch, 118 S.W.3d at 750. 

When the movant urges multiple grounds for summary judgment and the 

order does not specify which was relied upon to render the summary judgment, the 
6

appellant must negate all grounds on appeal. McCoy v. Rogers, 240 S.W.3d 267, 

271 (Tex. App.—Houston [1st Dist.] 2007, pet denied); Ellis v. Precision Engine 

Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex. App.—Houston [1st Dist.] 2002, no 

pet.) (citing State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 381 (Tex. 1993)). 

“If summary judgment may have been rendered, properly or improperly, on a 

ground not challenged, the judgment must be affirmed.” Ellis, 68 S.W.3d at 898 

(citing Holloway v. Starnes, 840 S.W.2d 14, 23 (Tex. App.—Dallas 1992, writ 

denied)).

B. Applicable Law

A bill of review is an independent action to set aside a judgment that is no 

longer appealable or subject to challenge by a motion for new trial. Wembley Inv. 

Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999). A bill-of-review complainant 

must plead and prove three elements: (1) a meritorious claim or defense; (2) that he 

was prevented from asserting by the fraud, accident or wrongful act of his

opponent or by official mistake; and (3) the absence of fault or negligence of the 

complainant. Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998). 

There are two categories of fraud in bill-of-review proceedings: intrinsic and 

extrinsic. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 752 (Tex. 2003). 

Intrinsic fraud “relates to the merits of the issues that were presented and 

presumably were or should have been settled in the former action.” Id. Intrinsic 
7

fraud includes fraudulent instruments, perjured testimony, or any matter actually 

presented to and considered by the trial court in rendering the judgment assailed. 

Id. Because each party is expected to guard against adverse findings on issues 

directly presented, intrinsic fraud will not support a bill of review. Id. (“Issues 

underlying the judgment attacked by a bill of review are intrinsic and thus have no 

probative value on the fraud necessary to a bill of review.” (citing Tice v. City of 

Pasadena, 767 S.W.2d 700, 702 (Tex. 1989)).

Only extrinsic fraud will support a bill of review. Id. (citing Tice, 767 

S.W.2d at 702). Extrinsic fraud is that which denies “a party the opportunity to 

fully litigate at trial all the rights or defenses that could have been asserted.” Id.

“As a matter of law, misrepresentation with respect to the value of known 

community assets does not alone constitute extrinsic fraud.” Rathmell v. Morrison, 

732 S.W.2d 6, 13 (Tex. App.—Houston [14th Dist.] 1987, no writ).

Misrepresentation of the value of assets must be coupled with proof of some 

additional wrongful act that induced reliance in order to constitute extrinsic fraud. 

See id. at 14 (evidence that former husband induced wife to rely on his 

misrepresentation regarding value of community-property companies by 

threatening to dissolve companies if wife insisted on having companies 

independently appraised was evidence of more than intrinsic fraud).
8

C. Analysis

In her no-evidence summary-judgment motion, Donna argued that there was 

no evidence to support the second and third elements of Jesus’s claim for a bill of 

review, namely, that he was prevented from making a meritorious defense by 

fraud, accident, or wrongful act of Donna or official mistake, or that his failure to 

assert a meritorious defense was unmixed with any fault or negligence of his own. 

See Caldwell, 975 S.W.2d at 537. The trial court granted summary judgment 

without specifying its reasons for doing so. 

Although Jesus frames his argument as if the trial court prohibited him from 

presenting evidence at trial, no trial occurred because the trial court entered 

summary judgment in Donna’s favor. Thus, to prevail on appeal, Jesus was 

required to negate all possible grounds raised by Donna’s summary-judgment 

motion. See McCoy, 240 S.W.3d at 271; Ellis, 68 S.W.3d at 898. 

On appeal, Jesus mentions neither ground for summary judgment. Instead, 

the entirety of the argument in his appellate brief states: 

At a Bill of Review trial, the defendant-petitioner must prove the 

elements of the bill of review by a preponderance of the evidence. 

See Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004). Appellant 

was denied from presenting any evidence to establish the grounds for 

the bill of review. It is this denial which forms the basis of this 

appeal.

Summary judgment “may have been rendered, properly or improperly,” on the two 

grounds asserted in Donna’s motion. Ellis, 68 S.W.3d at 898. Because Jesus does 
9

not challenge these grounds on appeal, we must affirm the trial court’s judgment. 

See McCoy, 240 S.W.3d at 271 (when summary-judgment order does not specify 

grounds, the appellant must negate all grounds on appeal); Ellis, 68 S.W.3d at 898 

(same); see also Caldwell, 975 S.W.2d at 537.

Conclusion

We affirm the trial court’s judgment. 

Rebeca Huddle

Justice

Panel consists of Chief Justice Radack and Justices Higley and Huddle.